Keywords

As Chapter 2 of this volume has shown, NTA was implemented in several contexts and extensively discussed internationally during the first four decades of the twentieth century, mainly in relation to the former land empires of Central and Eastern Europe and their successor states established after World War I. Immediately after World War II, by contrast, NTA largely disappeared from the international legal and political agenda, as the concept of targeted minority rights was replaced by a new emphasis on universal individual human rights.

Far from becoming just a footnote in history, however, NTA has again started to attract strong interest from scholars and policymakers since the start of the 1990s (Coakley, 1994). This resulted from new applications of the concept in various settings around the world, but especially in Central and Eastern Europe following the end of communist rule. Here numerous laws and institutional arrangements bearing the NTA label have come into being, from Hungary (1993) to Estonia (1993) and Russia (1996) to the countries of former Yugoslavia (Slovenia 1994, Croatia 2002, Montenegro 2007, Serbia 2009). This revival has occurred within the context of wider processes of democratization supported by European and Euro-Atlantic International Organizations, which have elaborated new international standards on minority protection. These standards have become the principal benchmark against which different forms of NTA are assessed today. The main aim of this chapter is to analyse how NTA fits within this wider framework and to assess the potential of NTA as a democratization tool.

FormalPara Study Objectives

The chapter seeks to:

  • determine the origins and drivers of contemporary variants of NTA;

  • assess the relationship between NTA and democratization in post-Cold War Europe;

  • establish the main characteristics of a democratic NTA arrangement; and

  • use these characteristics to assess contemporary examples of NTA.

4.1 Origins and Drivers of NTA as a Tool of Democratic Statecraft

The contemporary revival of NTA as an instrument of democratic statecraft is not just a Central and East European phenomenon. Nor is it entirely a product of the post-Cold War era. NTA principles can be seen, for instance, in the arrangements that were introduced within the Brussels Capital Region that took shape as part of the federalization of Belgium from 1970 onwards, and the provisions made for French-speaking Acadians in Canada during the same period. New contemporary manifestations of NTA have thus represented a response to what the anthropologist Crawford Young (1983) called a ‘surge of mobilised communalism’ within Western democracies from the 1960s onwards, and attendant developments in international law such as the adoption of Article 27 of the 1966 United Nations International Convention on Civil and Political Rights. In this respect, NTA has also emerged as a key reference point in relation to the rights of indigenous peoples, as seen for example in the inauguration of the Sámi Parliament of Norway in 1989. The presence of a shared sense of belonging or ‘We feeling’ (Easton, 1965) uniting the citizens of a polity has long been understood as one of the fundamental building blocks of a functioning democracy. In the classic liberal conception, this common identity was taken to imply cultural homogeneity (Mill, 1861).However, as Will Kymlicka remarked in 2007, ‘In the last forty years, we have witnessed a veritable revolution around the world in the relations between states and ethno-cultural minorities. Older models of assimilationist and homogenizing nation-states are increasingly being contested, and often displaced, by newer “multicultural” models of the state and of citizenship’ (Kymlicka, 2007, 3). In the realm of political theory too, this same period saw new contributions such as Arend Ljiphart’s (1968) concept of consociationalism, which held that democracy was possible in ethnically divided states if political elites representing rival communities could manage to agree on power-sharing arrangements, including features such as constitutional guarantees, territorial decentralization, and minority rights. While the NTA model is older in origin, it fits well within this contemporary frame, since autonomy is a matter not just of self-rule for a given minority, but also of shared rule between different groups inhabiting the same territorial space.

The NTA revival gained further impetus from the wave of democratization that swept Central and Eastern Europe and the Balkans from the late 1980s to the start of the twenty-first century. Amidst the initial liberal euphoria that followed the fall of the Berlin Wall in November 1989, many Western scholars and policymakers assumed that the societies emerging from authoritarian communist rule had now embarked on a pre-set transition to democracy. A major issue here was the fact that ‘the so-called transitology school all but ignored nationality and political community as explanatory factors of democratisation—or simply took it for granted’ (Duvold & Berglund, 2014, 344). The fall of communist regimes and, especially, the demise of the multinational USSR and Yugoslavia unleashed a new wave of political contestation around issues of state- and nation-building within newly created and/or reconstituted polities that were often deeply divided along ethno-cultural lines. In the worst case, these tensions descended into secessionist movements within the new states and violent inter-ethnic conflict over territory, as seen most graphically and tragically in the case of former Yugoslavia, but also in successor states to the USSR such as Georgia and Moldova. These developments quickly brought into focus the question of how to strengthen the ‘stateness’ of post-communist countries—i.e. how to preserve the integrity of their territorial borders and forge their ethnically diverse populations into stable and cohesive political communities—as one of the essential prerequisites for the development of functioning democratic political institutions (Brubaker, 1996; Linz & Stepan, 1996).

Post-communist democratization typically went hand in hand with popular support for ‘Europeanisation’ or ‘Return to Europe’, the expectation being that closer integration with the main European and Euro-Atlantic organizations established in the post-Cold War West would enhance the security, stability, and prosperity of societies emerging from communist rule. Gaining membership in the European Union (EU) became an especially key goal of reformist governments in the region; one essential prerequisite for joining the EU was to become a member of the Council of Europe (CoE), Western Europe’s post-World War II ‘club of democracies’, which began to expand to the democratizing states of the East from the start of the 1990s. At around the same time, issues of minority protection found their way back onto the agenda of both these organizations, which took their cue from ongoing work undertaken by the Conference on (from 1994, the Organization for) Security and Cooperation in Europe (CSCE/OSCE) (see below). In 1993, when the EU unveiled its ‘Copenhagen Criteria’ for admitting new applicant states from Central and Eastern Europe, these included ‘stability of institutions promoting democracy including respect for and protection of minorities’. This conditionality left the EU in a strong position to exert external pressure on applicant governments to adopt firmer guarantees for the rights of national minorities. In terms of the standards to be applied, the EU was guided primarily by the CoE, which drafted its own legally binding Framework Convention for the Protection of National Minorities (FCNM) in 1994.

It was against this background that NTA again began to attract significant attention from scholars and policymakers as a potential means of addressing growing autonomy claims by politically mobilized national minorities in post-communist Eastern Europe. As Aviel Roshwald (2007, 373) observes, NTA came to be understood as a model ‘[offering] minorities the option of substantive cultural self-determination without linking it to territorial autonomy, with all the centrifugal tendencies the latter may awaken’. Transitional governments in states containing large minority populations could indeed see the benefits of NTA as a statecraft tool, as they sought to negotiate the potentially ‘conflicting logics’ of democratization and nation-building (Linz & Stepan, 1996) within the context of their aspirations for European integration. In Estonia, for instance, revived discussions on NTA began already before the country restored its independence, as part of the gradual democratization of the Soviet political system from 1988 onwards. For the Estonian national movement that emerged during that year, NTA provided an important symbolic link to the democratic traditions of the 1920s Estonian Republic. At the same time, it was also understood as a potential means of defusing claims for territorial autonomy on the part of the country’s large Russian-speaking minority (Smith, 2020).

NTA was similarly discussed within Russia’s own turbulent political transition during this period, with the Law on National Cultural Autonomy (finally adopted in 1996) being understood as a way of addressing perceived threats to the state’s integrity posed by the ethno-territorial structures inherited from the USSR (Smith, 2021). In the case of Hungary, the decision to adopt NTA was driven partly by the needs and claims of the country’s small and territorially dispersed minority communities, but also by the fact that NTA designates minorities as groups with collective rights and the possibility to set up public legal bodies (Dobos, 2014). Against the backdrop of emerging debates on international standards of minority protection, Hungary hoped that its 1993 Minorities Law would be seen as an example of good practice and a template that other states would be encouraged to adopt, especially those neighbouring countries containing large, politically mobilized ethnic Hungarian minorities with their own autonomy claims (Molnar Sansum & Dobos, 2020). Post-communist governments in Hungary have consistently sought to build ties with these external Hungarian communities as part of contemporary nation-building; at the same time, especially during the 1990s and 2000s, they have been keen to ensure that the rights and claims of these minorities are upheld within their states of residence, to prevent any large-scale migration to Hungary that would place additional burdens on the state.

NTA: A tool of democratic statecraft

NTA has regained relevance in recent decades as a potential way of addressing ‘dilemmas of ethnic diversity’ (Roshwald, 2007) in democratic and democratizing states. One of the essential preconditions for functioning democracy is ‘stateness’—the existence of a consolidated political community of citizens bound by a common sense of belonging or ‘We feeling’ (Easton, 1965). How to achieve this when multiple ethno-culturally defined national identities coexist within the same territorial state? NTA seeks to address the challenge of reconciling civic equality and ethno-cultural diversity within a single state framework.

4.2 NTA, Democratization, and the Post-Cold War European Minority Rights ‘Regime’

When it comes to processes of state- and nation-building in multi-ethnic settings, it is clear that issues of security (i.e. bolstering ‘stateness’ and preserving state integrity) and democratization (ensuring social justice, equality, and the needs of minorities) are inextricably linked and support one another. Nevertheless, if NTA is to be truly established as a functioning instrument of democratic statecraft (as opposed to a top-down instrument for controlling and containing minorities’ claims within a majority-dominated state), it is necessary to shift the dominant focus of discussions on minorities and diversity away from security and into the realm of ‘normal’ democratic politics. The analysis in the preceding section, however, supports Will Kymlicka’s claim that the academic and political discourse and practice around NTA in Central and Eastern Europe during the 1990s were motivated more by concerns about security than they were by considerations of democratization per se (Kymlicka, 2007b).

In some cases (e.g. post-2000 Serbia), the adoption of NTA drew on pre-existing institutional arrangements and significant participation by minority actors from the ground up. In others, however, the process was driven from the top down by states and their dominant majority elites rather than reflecting the needs and priorities of minorities themselves. As Kymlicka and others rightly point out, suggestions by some at this time that NTA might be applied as a general catch-all alternative to territorial forms autonomy were hardly tenable: in the case of larger, more territorially concentrated populations especially, it was rather fanciful to think that minority identities could be ‘deterritorialized’ entirely. Thus, while NTA might indeed be the only possible vehicle for smaller and territorially dispersed groups seeking to preserve their distinct identity, in other contexts it was better understood as a complement to other territorially based arrangements. By this reasoning, the best way to ensure ‘stateness’ in ethnically divided societies is ‘not to attempt to de-territorialize minority identities, but rather to liberalize and democratize substate nationalisms, and to embed aspirations for self-government within a larger liberal–democratic constitutional framework’ (Kymlicka, 2007b, 388; see also Bauböck, 2001).

This feeds into a further important question, which is how NTA fitted within the new international ‘minority rights regime’ (Galbreath & McEvoy, 2011) that developed during the 1990s. At the forefront of developments in this area was the CSCE/OSCE, which had been established during the mid-1970s détente period in an attempt to enhance stability and security (including, crucially, not just state but also human security) across the then Cold War divide. At a landmark June 1990 meeting in Copenhagen, CSCE participating states affirmed that ‘questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the rule of law’, and that ‘respect for the rights of persons belonging to national minorities as part of universally recognized human rights is an essential factor for peace, justice, stability and democracy’ (CSCE, 1990a). The CSCE Charter of Paris for a New Europe, adopted in October 1990, went further, stating that justice, stability, and democracy require that conditions for protecting and promoting the ethnic, cultural, linguistic, and religious identity of national minorities be created (CSCE, 1990b). In 1992, the CSCE also created a new post of OSCE High Commissioner on National Minorities (HCNM) with a mandate to identify and address causes of ethnic tensions and conflicts, provide analysis and recommendations, and get involved in a situation if, in the HCNM’s judgement, there are tensions involving national minorities which could develop into a conflict. Successive HCNMs have since produced nine sets of thematic recommendations and guidelines to assist policymakers and representatives of states in developing policies that may ease inter-ethnic tensions.

While this OSCE activity complements and consolidates other frameworks such as the CoE FCNM and EU Copenhagen Criteria, it remains hard to talk of a coherent, legally binding international minority rights ‘regime’ in post-Cold War Europe. The guidelines and recommendations laid down by OSCE HCNM place no obligations on governments and the FCNM, while legally binding on its signatories, is indeed very much a framework—in the absence of any single, universally accepted definition of “national minority”, it falls to individual states to define this term and, by extension, the applicability of the Convention. At the EU level, while respect for and protection of minorities is now enshrined in Article 2 of the Lisbon Treaty as one of the core values of the Union, EU institutions lack any effective levers to ensure this value is upheld once a state has acceded as a full member. Despite the strength of commitment to European integration in Central and Eastern Europe during the early 1990s, governments there were reluctant to cede sovereignty over their populations to international organizations as part of a strong minority rights regime, particularly when existing member states in the West were not subject to legally binding obligations towards their own minorities. Particular concerns over security in Central and Eastern Europe led the EU to impose respect for and protection of minorities as a membership criterion for states in the region. This provided EU institutions with significant leverage over these countries prior to their accession; since the eastern enlargement, however, there has been no political will to make these standards legally binding on all members. The fact that certain long-standing EU member states in Western Europe have either not signed or not ratified the Council of Europe FCNM meant that the EU also found itself accused of applying double standards in relation to Central and Eastern Europe.

Within this state-centric framework, the political feasibility of adopting NTA as an approach to diversity accommodation (and, where applied, what ‘NTA’ means in practice) has varied significantly depending on the national context. More broadly, international minority protection has remained a contested political field divided between those governments—such as Hungary—which adhere to a communitarian, collective rights-based understanding of political community and others (in practice the large majority) following a more unitary ‘atomistic’ conception of democratic statehood based on individual rights and prioritizing equality and non-discrimination over the active official promotion of cultural diversity (Nimni, 2007). The former communitarian approach did feature in the initial discussions around minority rights following the end of the Cold War. The 1990 Copenhagen Declaration, for instance, noted ‘the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities’.

Advocates of minority autonomy also frequently refer to the (non-binding) 1 February 1993 Recommendation 1201 by the Parliamentary Assembly of the Council of Europe that the European Convention on Human Rights should be supplemented by an additional protocol on minority rights. Article 11 of this Recommendation states that ‘In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state’. As Csergő and Regelmann (2017, 2) observe, however, initial international interest in “collectively pursued minority rights” during the early 1990s has since been superseded by a greater focus on “individualist politics of non-discrimination”. In part, this is because the latter represents the only ‘minimum standard’ upon which different member governments can agree (Kymlicka, 2007b, 380). At the same time, Csergő & Regelmann argue, the shift in emphasis away from collective frameworks such as NTA has been guided by (securitized) ‘assumptions about the dangers of minority ethnic boundary-making’. Contrary to the hopes held by Hungarian and other NTA advocates at the start of the 1990s, then, the CoE FCNM contains no explicit reference to minority autonomy. However, in so far as multiple arrangements bearing this title do exist across states party to the FCNM, NTA does form a relevant part of regular monitoring under its Article 15 on effective participation (Council of Europe Advisory Committee, 2016, 30; Djordjević, 2023). In this respect, FCNM also references the relevant recommendations and guidelines published by OSCE HCNM, whose political mandate of assisting states undergoing democratic transition has involved assessing different ‘actually-existing’ NTA arrangements and the extent to which they can be deemed consistent with recognized good practices in democratic governance (Marsal, 2020). The next section briefly outlines the benchmarks for democratic NTA as set out in these guidelines. This ideal-type definition is then used to reflect on some contemporary examples of NTA.

NTA within International Minority Protection

Revived debates and practices around NTA have occurred against the background of new international norms on democracy and minority protection elaborated by the CSCE/OSCE, Council of Europe, and EU. These norms have not, however, translated into a robust ‘minority rights regime’ providing for effective transnational oversight or scope for agency on the part of minority actors themselves. The framework remains very much state-centric in nature. Thus, legally binding provisions in this area remain at the level of general framework principles, with priority given to individual rights rather than to collective rights instruments such as NTA. Nevertheless, within this framework, already existing NTA arrangements are considered as one possible means of ensuring that persons belonging to minorities enjoy rights to effective participation within public life.

4.3 Defining the Scope of Democratic NTA: Participation and Voice

In Renner and Bauer’s original scheme, NTA served to delineate ethnic groups and grant them legal rights within a multinational federal conception of statehood. In contemporary international norms and current scholarship, however, it is defined rather as a means of promoting effective participation by persons belonging to minorities within the framework of an integrated democratic political community. Malloy et al. (2015) use this understanding to categorize different NTA arrangements according to the level of ‘voice’ they confer to minorities within the overall political system of a state. Non-territorial (as well as territorial) arrangements are also specifically referenced within the 1999 OSCE HCNM Lund Recommendations on the Effective Participation of National Minorities in Public Life, under the subsection on ‘Self-Governance’, which highlights the utility of non-territorial forms of governance for regulating “education, culture, use of minority language, religion, and other matters crucial to the identity and way of life of national minorities” (OSCE HCNM, 1999, 11).

As both practitioners and scholars point out, however, the efficacity of NTA arrangements depends to a large degree upon the wider legal and political framework in which they operate. It is important, for instance, that the scope of autonomy and the competences of autonomy bodies are clearly spelt out in law, ideally through entrenchment in the constitution, though this legal framework should also be flexible enough to respond to the changing circumstances and needs of different minority communities. In the absence of such clarity and consistency, the rule of law may be compromised, leaving NTA arrangements vulnerable to manipulation by influential political elites. Also important from the standpoint of democratic norms are the relationship between NTA bodies and state and local government (i.e. to what extent do these bodies actually have an effective say in decisions that affect the minority communities they represent?), the volume and regularity of the funding that is provided to NTA bodies and the existence of formalized and transparent mechanisms for the allocation of this funding, and the extent to which NTA bodies are in touch with and accountable to the broader minority constituency (Marsal, 2020).

This ties in with another dimension emphasized by the HCNM Lund Recommendations, which is the respect of good governance principles by NTA institutions. According to the Recommendations, a democratic framework of self-governance requires that decision-making processes ‘should always be inclusive of those concerned, transparent for all to see and judge, and accountable to those affected’ (OSCE HCNM, 1999, 20). The importance of respecting political pluralism within minority representative bodies is reiterated and further developed by the HCNM’s Ljubljana Guidelines on Integration of Diverse Societies, drafted in 2012, which emphasize the need to fully respect individual human rights (OSCE HCNM, 2012, 47) rather than simply the status and assumed interests of a monolithically defined ethnic group. If one political grouping within a minority dominates autonomous institutions without regard to the opinions of opposing factions and/or the needs of the wider community, internal democracy is diminished and the perceived legitimacy of these institutions is likely to suffer accordingly. This is especially so in cases where deficient rule of law allows a state government to co-opt and control the dominant minority grouping through political bargaining (Marsal, 2020).

Key components of democratic NTA

Guidelines set out by the OSCE and Council of Europe in particular offer a relevant set of benchmarks for assessing the contemporary practice of NTA in various settings. Generally seen as crucial is the wider legal and political framework within which NTA arrangements operate, and the extent to which this upholds principles of democracy and rule of law. It is also important that NTA institutions themselves adhere to good governance principles, ensuring that all voices are heard within internally diverse communities and that one segment of a minority elite does not monopolize institutions and use them to pursue its own interests over those of the broader community.

4.4 Assessing the Practice of NTA

In their 2015 comparative analysis of current NTA arrangements in Europe and Canada, Malloy, Osipov, and Vizi divide their cases into three categories according to the strength of voice given to ethno-cultural groups both in running their own affairs and in the wider political community. These categories run from substantive ‘voice through self-governing institutions’ (Hungary, Croatia, Serbia, Slovenia, Sámi Parliaments in Norway, Sweden, and Finland) through an intermediate category of ‘minority self-management’ (‘quasi-voice’ through delegation of public functions to minorities—Acadians in Canada, Sorbs in Germany, reciprocal Danish-German arrangements in Schleswig/Slesvig) to the weakest category of ‘symbolic participation’ (‘non-voice’, in that minorities are given neither an effective say in their own affairs nor any co-decision-making powers—the Russian Federation and Estonia).

Other studies of NTA practice in these contexts (including the conclusion to the same volume—Salat, 2015) cast doubt on this categorization. While not disputing the wholly symbolic character of arrangements in Russia and Estonia, they argue that even in those cases where NTA is legally entrenched and highly institutionalized, minority representatives enjoy little in the way of real political influence. The system of Sámi NTA in the Nordic countries, for instance, is often held up as ‘one of the most prominent models for addressing indigenous rights questions’ (Stępień et al., 2015, p. 117); yet in reality, elected Sámi ‘parliaments’ have no legislative authority and function primarily as consultative bodies with limited scope to address issues of concern to the communities they represent (Spitzer & Selle, 2020). The system of NTA established in Hungary under its 1993 Minorities Act is without question the most highly developed among those in post-communist Europe and was presented as breaking new ground in the field of minority rights. Critics nevertheless contend that this system has been largely built from the top down, within an increasingly centralized—and, under Viktor Orbán’s rule from 2010, authoritarian—political system. Thus, Minority Self-Governments have competences largely confined to the sphere of culture, their ‘rights of agreement’ with local municipalities are limited and often disregarded, and they remain financially dependent on local authorities (Agarin & McGarry, 2014; Dobos, 2020).

A further case in point is Serbia, where initially far-reaching NTA provisions introduced in 2009 were quickly contested by more nationalistically minded elements among the Serbian majority, resulting in a 2014 Constitutional Court ruling that significantly diluted the competences of National Minority Councils. Issues such as a lack of clarity around the legal status of these bodies and insufficient state funding have been compounded by a perceived erosion of their internal democracy. Recent studies of the Hungarian Minority Council, for instance, point to an effective takeover of this institution by a dominant ethnic Hungarian political grouping that is locked into a clientelist relationship both with Serbia’s ruling party and with Viktor Orbán’s Fidesz in neighbouring Hungary, with the Hungarian state providing the vast majority of funding for projects run by the Minority Council (Smith, 2023). Such examples suggest that legal entrenchment and institutionalization count for little if NTA operates within a wider political system that does not uphold fundamental principles of democracy and rule of law. Regardless of the context, however, another important factor is the extent of the social capital and bottom-up activism that a minority group can itself bring to bear. In the case of Hungary, for instance, the NTA system has been largely satisfactory from the perspective of a German minority that is well-integrated and organized, comparatively well-resourced (including through external support from a democratic kin-state) and mainly focused on the development of German language and culture. It is a different matter in the case of a Roma minority that continues to face pressing issues of discrimination and socio-economic exclusion, with some critics asserting that a system which focuses solely on culture and marks the Roma as ethnically ‘Other’ (Kovats, 1997) may even exacerbate these problems.

NTA and democracy: theory and practice

Studies of existing NTA arrangements find that these often fail to adequately fulfil the criteria set by relevant International Organizations, even where a high level of legal entrenchment and institutionalization exists. Thus, even those forms of NTA lauded as most comprehensive often fail to give minority representatives an effective ‘voice’ in decision-making on matters relevant to them and thus veer towards a purely symbolic form of representation. In the absence of an effective rule of law or wider supporting democratic political system, NTA arrangements can also easily fall prey to the particular interests of minority (or external kin-state) elites, undermining their representatives and legitimacy in the eyes of the wider communities they purport to represent. Blanket generalization is, however, difficult, since much will also depend upon the nature of the minority community and the resources and social capital it can draw upon.